Opinion
No. 953 C.D. 2013
04-16-2014
Katrina Sexton, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Katrina Sexton (Claimant), representing herself, petitions for review of the order of the Unemployment Compensation Board of Review (Board) that denied her benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Additionally, the Board determined Claimant did not show proper cause for failing to attend the referee's initial hearing, and it declined to consider additional evidence offered on the merits at a remand hearing. Claimant contends the Board's determination that she committed willful misconduct is not supported by substantial evidence. Claimant also asserts her daughter's medical issues and a conflicting medical appointment constituted proper cause for not attending the initial referee's hearing. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for Community Council Health Systems (Employer) as a full-time teacher from January 2007 until September 24, 2012, when Employer discharged her. Claimant applied for unemployment compensation benefits, which the local service center approved. Employer appealed, and the matter was assigned to a referee for hearing.
At the referee's hearing, Employer presented the testimony of its Human Resources Generalist (Human Resources Generalist), the Director of the Therapeutic Preschool (Director), and the Assistant Director of the Preschool Family Intervention Program (Assistant Director). Claimant did not attend the hearing.
Based on Employer's evidence, the referee made the following findings. Pursuant to Employer's policy, which is stated in the Employee Handbook, an employee must request leave seven days in advance for an absence to be considered an excused absence, except in the case of medical emergencies or other excused leave as stated in the policy. Employer's policy further provides that excessive tardiness or absenteeism, insubordinate conduct or job performance that does not meet identified standards is cause for termination of employment. Claimant was aware, or should have been aware, of Employer's policies. Referee's Op., 11/28/12, Findings of Fact (F.F.) Nos. 2-4.
In April 2012, Claimant had three unexcused absences. Employer transferred Claimant to a new department and placed her on probation effective September 7, 2012. Claimant was late on three occasions in September 2012 and missed mandatory meetings held at 8:15 a.m. Claimant did not notify Employer as specified by Employer's protocol, which required her to call within 15 minutes of the start time if late or absent. On September 21, 2012, Claimant called out to study for a test. Claimant was aware of Employer's policy requiring her to obtain permission seven days in advance; otherwise, the absence would be considered an unexcused absence leading to discharge from employment. F.F. Nos. 5-9.
Additionally, Claimant's job performance was deficient. Employer arranged additional training programs for Claimant on September 13, 2012, and on September 14, 2012. Director observed Claimant using her iPad during the training, which Employer conducted to address her unsatisfactory job performance. Also, Claimant texted throughout the sessions. Employer considered Claimant's conduct insubordination. On September 24, 2012, Employer discharged Claimant for violating Employer's policies. F.F. Nos. 10-14.
The referee determined Claimant's conduct of using her personal iPad during a training program, which was intended to improve the deficiencies in her job performance, constituted insubordination and amounted to willful misconduct. The referee also concluded Claimant's failure to give seven days' notice of her absence on September 21, 2012, constituted willful misconduct. Thus, the referee held Claimant was ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Law.
From this decision, Claimant appealed to the Board. She requested a rehearing on the basis that she was unable to attend the original hearing because of medical issues with her daughter. The Board remanded to referee, acting as the Board's hearing officer, to receive evidence on Claimant's reason for her nonappearance at the initial hearing and to allow the parties to present additional evidence on the merits.
At the remand hearing, Claimant, representing herself, testified her daughter had serious health problems for which she had a follow-up appointment on November 28, 2012, the same day as the referee's hearing. Referee's Hr'g, Notes of Testimony (N.T.), 2/14/13, at 5-6. Claimant thought the hearing was scheduled for November 29, 2012, but she did not realize her mistake until that day. Claimant called the referee's office and requested to have the hearing reopened. Claimant testified she was not sure exactly when she scheduled the doctor's appointment on November 28, 2012, although she believed it was after receiving results from lab tests performed on November 19, 2012.
For its part, Employer again presented the testimony of its Human Resources Generalist, Director and Assistant Director. These witnesses testified regarding the merits of Claimant's claim.
Following the remand, the Board affirmed the referee's decision. The Board determined it was Claimant's responsibility to notify the referee that she would be unable to attend the hearing as scheduled, and it noted Claimant had the opportunity to request a continuance. The Board held Claimant lacked good cause for her failure to attend the hearing. Consequently, the Board did not consider the additional evidence offered at the remand hearing regarding the merits. The Board adopted and incorporated the referee's findings and conclusions as its own. Claimant now petitions for review.
On appeal, Claimant primarily argues she had proper cause for failing to appear at the original hearing. Specifically, Claimant asserts she missed the original hearing because of her daughter's medical appointment. According to Claimant, a conflicting medical appointment constitutes good cause under the Board's regulations. She also maintains the Board erred by declining to consider the additional evidence offered on the merits at the remand hearing.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
The Board acknowledges that a conflicting medical appointment may constitute good cause for a continuance. However, it counters Claimant had a duty to request a continuance, which she did not request.
Section 101.51 of the Board's regulations, 34 Pa. Code §101.51, provides: "If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in [her] absence." A claimant who desires a continuance as a result of her inability to attend a hearing has a duty to "immediately request a continuance in writing before the hearing." Flores v. Unemployment Comp. Bd. of Review, 686 A.2d 66, 76 (Pa. Cmwlth. 1996) (internal quotation omitted). Even the notice of hearing sent to the parties advised: "In order for a request to be considered by the [r]eferee for a POSTPONEMENT or a SUBPOENA, a timely request must be made by the party requesting the continuance or subpoena in writing." Notice of Hearing, 11/14/12, at 7, Certified Record (C.R.) Item No. 8.
Here, Claimant did not request a continuance, in writing or otherwise, because she mistakenly believed the original hearing was scheduled for November 29, 2012, rather than for November 28, 2012. N.T., 2/14/13, at 6. However, the notice of hearing clearly stated the hearing was scheduled for November 28, 2012. Notice of Hearing, 11/14/12, at 1, C.R. Item No. 8. Claimant maintains she did not realize the hearing was scheduled for the same time as her daughter's medical appointment because she was under a great deal of stress as a result of her daughter's health issues and her discharge from employment. Pet'r's Br. at 7-8.
Although we sympathize with Claimant, who was understandably anxious about her daughter's illness and her own loss of employment, Claimant's confusion regarding the hearing date did not constitute good cause for failing to request a continuance. See Savage v. Unemployment Comp. Bd. of Review, 491 A.2d 947 (Pa. Cmwlth. 1985) (holding a party's misreading of a notice of hearing did not constitute good cause for failing to attend the hearing). Because Claimant did not establish proper cause for her nonappearance, the Board properly refused to consider the additional testimony offered on the merits at the remand hearing. See Ortiz v. Unemployment Comp. Bd. of Review, 481 A.2d 1383 (Pa. Cmwlth. 1984) (requiring the Board to make a determination using the record before the referee if claimant's absence at the referee's hearing was not excused by proper cause).
Next, Claimant briefly argues the Board's determination that she committed willful misconduct is not supported by substantial evidence. Specifically, Claimant contends her absences did not constitute willful misconduct because Employer did not give her a final warning in accordance with its progressive disciplinary policy.
In unemployment compensation cases, the Board is the ultimate fact-finder. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 501 A.2d 1383 (1985). The Board's findings are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 378 A.2d 829 (1977). Moreover, "[f]indings of fact made by the Board, which are not specifically challenged, are conclusive upon review." Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (quoting Steinberg Vision Assocs. v. Unemployment Comp. Bd. of Review, 624 A.2d 237, 239 n.5 (Pa. Cmwlth 1993)).
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which [her] unemployment is due to [her] discharge ... from work for willful misconduct connected with [her] work ...." 43 P.S. §802(e). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).
The employer bears the initial burden of proving a claimant engaged in willful misconduct. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). When asserting a discharge based on a violation of a work rule, an employer must establish the existence of the rule, the reasonableness of the rule, the claimant's knowledge of the rule, and its violation. Id.
"Where an employer promulgates a specific disciplinary system, it is incumbent upon employer to follow that system." PAM Reinsurance Corp. v. Unemployment Comp. Bd. of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989). While an employer may discharge a claimant for any number of reasons, "it must do so in accordance with its own rules if [the] [c]laimant is to be ineligible for unemployment compensation benefits." Id. at 626.
Once an employer meets its burden, a claimant may then prove she had good cause for her actions. Dep't of Corr. A claimant can establish good cause by showing her actions were justifiable or reasonable under the circumstances. Id. Whether a claimant's actions constitute willful misconduct and whether a claimant proved good cause are both questions of law fully reviewable by this Court. Id.
Here, Employer introduced its attendance policy, which provides for progressive discipline. Employer's Ex. E-3, C.R. Item No. 9 (Attendance Policy). Specifically, the Attendance Policy states that Employer will provide an employee with excessive absences a written warning prior to discharging her for absenteeism. Id. However, Employer did not introduce any written warning into evidence. In fact, according to Director's testimony, the only warning Employer provided to Claimant regarding her attendance was a general explanation of the attendance policy given to all employees when Claimant transferred departments. N.T., 11/28/12, at 7. Because Employer did not adhere to its progressive disciplinary policy in discharging Claimant for absenteeism, her absenteeism may not serve as a basis for denial of benefits under Section 402(e) of the Law. See PMA (an employee's chronic tardiness and absenteeism did not amount to willful misconduct where employer did not follow its progressive disciplinary policy).
The last steps of Employer's Attendance Policy state:
Nine (9) Unexcused Absences/Occurrences - Attendance Probation. Seven (7) for 10 Month EmployeesEmployer Ex. E-3, C.R. Item No. 9.
Manager will present employee with a letter documenting attendance probation and remind the employee that one (1) additional absence day will result in termination.
Ten (10) Unexcused Absences/Occurrences - Termination of Employment. Eight (8) for 10 Month Employees
Nevertheless, Claimant's excessive absenteeism was not the only basis for her discharge. Employer also discharged Claimant for insubordination for using her iPad during a training session. Service Center Ex. SC-6, C.R. Item No. 3 (Separation Letter). The Board determined this conduct amounted to willful misconduct disqualifying her from receiving benefits.
Employer also cited poor job performance as a basis for discharge. Service Center Ex. SC-6, C.R. Item No. 3; see F.F. No. 10; However, "mere incompetence, inexperience, or inability to perform a job generally will not support a finding of willful misconduct" under Section 402(e) of the Law. Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012).
Unfortunately, Claimant did not challenge the Board's determination that she engaged in willful misconduct by using her iPad during a training session in her petition for review to this Court, nor did she otherwise develop the issue in her brief. Instead, Claimant focused her willful misconduct challenge on the attendance issues. Consequently, the insubordination issue is waived. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998) (failure to develop issue in appellate brief results in waiver); Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608 (Pa. Cmwlth. 2006) (issues not contained in petition for review or fairly comprised therein are deemed waived). Moreover, Claimant did not challenge any of the Board's findings relating to her insubordinate conduct. As a result, such findings are conclusive on appeal. See Hessou.
Moreover, had Claimant preserved the insubordination issue, the record supports a determination of willful misconduct on this basis. More specifically, Claimant had problems during her employment. Ultimately, Employer transferred Claimant to a new department, placed her on probation, and required her to undergo additional training. The Board found Claimant used her iPad during a training session, which Employer conducted to address her unsatisfactory job performance. F.F. No. 12. Also, the Board found Claimant texted throughout the session, which Employer considered insubordination. F.F. No. 13. Pursuant to Employer's policy, Employer prohibits "insubordinate conduct," which it defines as "refusal or failure to comply with a reasonable order given by your supervisor/or speaking to a supervisor in a derogatory or demeaning manner." Employer's Ex. E-1, C.R. Item No. 9.
The Board's findings are amply supported by the record. In the Notice of Corrective Action, Employer cited two instances of Claimant's conduct during additional training which led to termination. Specifically:
• Insubordination: During an individual training session [Claimant] gave her attention to an iPad, not acknowledging the trainer or the material. [Claimant] still struggles with the material that the training focused on. Several processes have been explained to her, which she has failed to comply.Notice of Corrective Action, 9/20/12, C.R., Item No. 3, (emphasis added); see also N.T., 11/28/12, at 3 (admitting Notice of Corrective Action into evidence without objection). Thus, Employer instructed Claimant to turn off all electronics during training. Nevertheless, Employer observed her texting throughout the session. F.F. No. 13.
• Insubordination: During a group training session [Claimant] has [sic] observed texting throughout the session. All employees were requested to turn off all cell phones and electronics as the training was to take precedence.
Claimant did not object to the evidence at the hearing; she did not challenge the competency of this evidence or challenge any specific findings in her petition for review with this Court; and, she did not argue about the competency of evidence in her brief. Consequently, Claimant waived any challenge to the competency of this evidence. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998); Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608 (Pa. Cmwlth. 2006).
Additionally, at the initial referee's hearing, Employer's witnesses testified Claimant used her iPad and did not pay attention to the trainer during the additional training sessions. N.T., 11/28/12, at 9. Director personally observed Claimant using her iPad while the trainer presented information. Id. at 10. Additionally, Human Resources Generalist testified Employer set up the additional training sessions to specifically address deficiencies in Claimant's substandard job performance. Id. at 10-11. Instead of embracing the training, Claimant did not pay attention, and her job performance continued to suffer. Id. This evidence shows not only a violation of Employer's work rule prohibiting insubordination but a disregard of the standards of behavior Employer had the right to expect of Claimant. We, therefore, conclude the Board did not err in determining Claimant is ineligible for benefits under Section 402(e) of the Law.
Accordingly, the order of the Board is affirmed.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 16th day of April, 2014, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE COHN JUBELIRER
I respectfully dissent. I believe Katrina Sexton (Claimant) demonstrated proper cause for failing to attend the November 28, 2012 hearing before the Referee (Original Hearing) due to her child's conflicting urgent medical appointment; therefore, I believe the Unemployment Compensation Board of Review (Board) erred in failing to consider her testimony offered at the hearing held on February 14, 2013 (Remand Hearing). Moreover, because I also believe Community Council Health Systems (Employer) failed to establish that Claimant engaged in disqualifying willful misconduct under Section 402(e) of the Unemployment Compensation (UC) Law, I would vacate the Board's Order finding Claimant ineligible for UC benefits and remand for the Board to consider Claimant's testimony at the Remand Hearing.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
I believe Claimant showed proper cause for failing to attend the Original Hearing. The Board's regulation at 34 Pa. Code § 101.24(a), (c) provides that an UC hearing may be reopened after the issuance of the Referee's Decision if the Board determines that a party who failed to appear at the initial hearing shows that the "failure to attend the hearing was for reasons which constitute 'proper cause.'" Id. This Court has held that when a party "does not act in the prescribed manner to protect its own interest, the Board has no good cause to order a rehearing." Bennett v. Unemployment Compensation Board of Review, 470 A.2d 203, 205 (Pa. Cmwlth. 1984). In this case, although Claimant did not request a continuance, I believe she acted as a reasonable person would have under these circumstances to protect her own interest.
In this context, our Court and the Pennsylvania Supreme Court often use the terms "proper cause" and "good cause" interchangeably. See, e.g., McNeill v. Unemployment Compensation Board of Review, 510 Pa. 574, 578-79, 511 A.2d 167, 169 (1986) (discussing employer's failure to attend a hearing in terms of both "proper cause" and "good cause"). --------
At the Remand Hearing, Claimant testified that on November 19 or 20, 2012, approximately a week before the Original Hearing, Claimant took her daughter to the doctor for a swollen neck. (Hr'g Tr. at 5-6, February 14, 2013, R. Item 16.) The doctor ordered tests to determine whether Claimant's daughter might have a serious form of childhood cancer. (Hr'g Tr. at 5-6.) Claimant testified that a follow-up appointment to discuss the test results was scheduled for November 28, 2012, the same day as the Original Hearing. (Hr'g Tr. at 6, 9.) Claimant believed that the Original Hearing was scheduled for November 29, 2012, rather than November 28, 2012. (Hr'g Tr. at 6-9.) It was not until the morning of November 29 that Claimant realized her mistake. (Hr'g Tr. at 6, 8.) Given the stress of her daughter's health problems and the loss of her job, Claimant's confusion regarding the date of the Original Hearing is understandable and could have happened to any other reasonable person under similar circumstances. Upon realizing her mistake, Claimant acted reasonably to protect her interests. On November 30, 2012, Claimant sent a fax to the Board appealing the Referee's Decision, which was issued the same day as the Original Hearing, and explaining her confusion. (Petition for Appeal at 4, R. Item 12.) Thus, I believe Claimant had proper cause for not attending the Original Hearing and that the Board, therefore, should have considered the testimony Claimant offered on the merits of her claim at the Remand Hearing.
Had the Board considered the testimony offered on the merits of her claim, the Board could have found that Claimant's use of an iPad during a training session did not constitute willful misconduct. The Majority concludes that Claimant engaged in insubordination due to her use of an iPad during a training session. Sexton v. Unemployment Compensation Board of Review (Pa. Cmwlth. No. 953 C.D. 2013, filed April 16, 2014), slip op. at 9-12. Importantly, however, nowhere in its brief does the Board raise this alleged insubordination as a basis for Claimant's discharge. This is likely because Employer failed to adduce sufficient competent evidence to show that Claimant's use of an iPad during the training session constituted insubordination as defined by Employer's disciplinary policy.
Where a claimant is discharged for violation of a work rule, the employer must show the existence of the work rule and that the claimant knew about or had notice of the work rule. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010); Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). Here, the Assistant Director of the Preschool Family Intervention Program testified that Claimant was not allowed to use personal equipment during work hours. (Hr'g Tr. at 10, November 28, 2012.) However, Employer offered no testimony or competent evidence that Claimant knew about or was on notice of this work rule. Moreover, no such rule appears in the code of conduct offered by Employer. (Time, Attendance and Performance Management, Hr'g Ex. E-1, R. Item 9.)
Employer's code of conduct prohibits "insubordinate conduct," which it defines as "refusal or failure to comply with a reasonable order given by your supervisor/or speaking to a supervisor in a derogatory or demeaning manner." (Time, Attendance and Performance Management at 1, Hr'g Ex. E-1.) Claimant's conduct does not fall within this definition because Employer never established that a supervisor instructed Claimant not to use personal electronic devices during work hours. The Majority relies upon a Notice of Corrective Action introduced by Employer that stated, "[a]ll employees were requested to turn off all cell phones and electronics as the training was to take precedence." (Notice of Corrective Action, September 20, 2012, R. Item 3.) As an out-of-court statement, however, the Notice of Corrective Action constitutes hearsay. Unobjected-to hearsay may constitute substantial evidence to support a finding of fact only if it is corroborated by other competent evidence in the record. Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth 1976). Employer offered no testimony that Claimant was instructed to turn off her personal electronic device during the training. Thus, the Notice of Corrective Action is uncorroborated as to this alleged fact and may not be relied upon to establish it.
Even if Employer had adduced sufficient competent evidence to show that Claimant had been instructed to turn off her iPad, Claimant testified that she had her iPad out because the trainer was showing her how to use a program on it for her work. (Hr'g Tr. at 39-40, February 14, 2013.) The Board did not consider this testimony; however, this testimony, if credited by the Board, supports Claimant's argument that her use of the iPad was at the trainer's instruction and in furtherance of improving her work performance. This conduct would not be considered insubordination. I note that the trainer did not testify and Employer, instead, presented the testimony of the Director of the Therapeutic Preschool, who witnessed Claimant using her iPad, but admitted that she only observed Claimant briefly and that Claimant's use of the iPad might have been relevant to the training. (Hr'g Tr. at 36-38.)
Because I believe that Claimant had good cause for failing to attend the Original Hearing I also believe that her testimony at the Remand Hearing should have been considered by the Board. Claimant presented testimony that, if credited, would support her argument that her use of the iPad did not fall within Employer's definition of insubordinate conduct and, because Employer failed to establish that Claimant was informed of a work rule against using personal electronics during work hours, Claimant's use of the iPad during training should not serve as a basis for disqualification under Section 402(e) of the Law. I would, therefore, vacate the Order of the Board and remand this matter for consideration of the testimony adduced at the Remand Hearing.
/s/ _________
RENÉE COHN JUBELIRER, Judge Judge Leavitt joins in this dissenting opinion.